5.  The applicant, Mr Boutros Yaacoub El Khoury was born in 1977. At the time of lodging his applications he was detained in Berlin’s Moabit prison.
6.  On 2 August 2005 the Berlin Tiergarten District Court issued an arrest warrant against the applicant on suspicion of two counts of drug trafficking. The arrest warrant specified that the strong suspicion that the applicant had committed the offences resulted from statements made by one of his co‑suspects, the separately prosecuted A.K. The District Court further found that there was a risk that the applicant, who did not have a permanent residence in Germany and in the past had been travelling between Brazil and Europe, would abscond. A partly suspended prison sentence had previously been imposed on him in Germany. Moreover, two additional arrest warrants were pending against him in Germany, one relating to a further offence of drug trafficking and the other, dated 1 July 2004, concerning forgery of identification papers.
7.  On 16 August 2006 the applicant was detained in Portugal pending his extradition to Germany (Auslieferungshaft) as a consequence of the arrest warrants dated 1 July 2004 and 2 August 2005. On 8 September 2006 he was extradited to Germany where he was remanded in custody in Berlin Moabit prison. His detention on remand (Untersuchungshaft) was subject to reinforced security conditions. He was kept separate from other prisoners in an isolated cell (isolierter Einzelhaftraum) and was excluded from most group prison events. Contacts with visitors were limited and subject to close supervision.
8.  On 18 September 2006 the Berlin Prosecutor’s Office charged the applicant with having used a forged passport when entering German territory on one occasion in 2003. By a further bill of indictment dated 20 October 2006, he was charged with two counts of drug trafficking, committed jointly with several co-accused, among them G., U. and A.K. He was further accused of having incited G. to import drugs illicitly.
9.  In their description of the facts underlying the drugs-related offences allegedly committed by the applicant, the prosecution authorities mainly relied on statements made by A.K. in the course of separate criminal proceedings jointly conducted against A.K. and U. before the Berlin Regional Court on suspicion of organised drug trafficking. The bill of indictment further specified that the applicant was suffering from a congenital heart defect and as a consequence was not to be subjected to long-lasting situations of physical and mental stress.
10.  On 13 December 2006 the Berlin Regional Court admitted both indictments and opened the trial against the applicant. The trial started on 20 February 2007. The applicant was represented by counsel throughout the proceedings.
11.  By a judgment of the Berlin Regional Court dated 28 February 2007 in the proceedings separately conducted against A.K., the latter was convicted of several counts of drug trafficking and illicit importation of drugs and sentenced to a cumulative prison sentence of five years and three months. A.K. appealed against the judgment on points of law.
12.  On 20 September 2007 and 30 October 2007 the applicant applied for the arrest warrants dated 1 July 2004 and 2 August 2005 to be set aside. By decisions of 20 September 2007 and 19 November 2007 respectively the Regional Court rejected the applicant’s motions.
13.  By a decision of 17 December 2007 the Court of Appeal rejected the applicant’s appeal. The Court of Appeal confirmed that the risk of absconding prevailed because a final expulsion order against the applicant was in force and he had used various aliases. It stressed that the applicant’s continued detention on remand was still proportionate. The trial court had complied with its obligation to conduct the proceedings expeditiously. Any circumstances that had limited the court’s ability to accelerate the proceedings had their origin outside the latter’s sphere of responsibility. Since the first trial day on 20 February 2007, hearings had been held on 37 days. Delays in the proceedings were the result of comprehensive applications for the taking of evidence by the defence in August and September 2007, in particular of a voluminous motion regarding the applicant’s alibi submitted on 2 August 2007. Moreover, the applicant had been unavailable to attend trial on a number of days due to his participation in separately conducted court proceedings. The Court of Appeal further noted that the fact that one of the judges sitting in the applicant’s case had been seconded to another court since 15 October 2007 had reduced the frequency with which hearings could be held.
14.  On 3 March 2008 the applicant again requested that the arrest warrants be set aside.
15.  By a decision of 7 March 2008 the Regional Court ordered that the applicant’s detention on remand be continued. In the Regional Court’s view any possible delays in the proceedings were the result of the defence’s continuing voluminous applications for the taking of evidence.
16.  Following the applicant’s appeal against this decision on 29 April 2008 the Berlin Court of Appeal lifted the arrest warrant dated 1 July 2004 but rejected the remainder of the applicant’s appeal. The Court of Appeal held that the risk of absconding was still high with regard to the fact that the applicant’s companion had been sentenced to four years in prison, the execution of which had been suspended on the condition that she reported to the police and did not leave the country (Haftverschonung).
17.  The Court of Appeal further held that while the sentence to be expected for the offence of forgery underlying the arrest warrant of 1 July 2004 did not justify its further execution, the applicant’s continued detention on remand on the basis of the arrest warrant dated 2 August 2005 was, for the time being, still proportionate. The Court of Appeal noted in this context that in the period since 20 February 2007 hearings had been held in the instant case on 56 days with an average duration of three hours, amounting to an average of less than one hearing day per week. Gaps in the hearing schedule from 23 April to 7 May 2007, in the period from 12 July until 3 September 2007 and from 22 December 2007 to 6 January 2008, were due to the judges’ absence on leave, while in May 2007 counsel for the defence had been on leave. The Court of Appeal further took into account that on several occasions the Regional Court had dispensed with the reading out of whole documents (so-called “self-reading procedure” – Selbstleseverfahren) to speed up the proceedings.
18.  On 29 May 2008 the applicant lodged a constitutional complaint against the Court of Appeal’s decision of 29 April 2008 and applied for his immediate release.
19.  On 2 June 2008, following a plea bargain between the prosecution and the defence, the proceedings against G. were severed from the applicant’s trial.
20.  On 4 June 2008 the applicant, whose heart condition had deteriorated in the course of his detention and who had previously been treated in the prison hospital, underwent heart surgery.
21.  By a decision of 11 June 2008 (file no. 2 BvR 1062/08) the Federal Constitutional Court declined to consider the applicant’s constitutional complaint of 29 May 2008, without providing reasons. It further held that, as a consequence, there was no need to decide on the applicant’s request for interim measures.
22.  In the proceedings against A.K., the Federal Court of Justice on 10 July 2008 dismissed A.K.’s appeal on points of law against his conviction by judgment of the Berlin Regional Court dated 28 February 2007.
23.  On 4 August 2008 the applicant submitted a further request to set aside the arrest warrant dated 2 August 2005. He argued that the continued execution of the arrest warrant was disproportionate.
24.  By a decision of 15 August 2008 the Berlin Regional Court held that the applicant’s detention was still proportionate.
25.  On 6 October 2008 the Berlin Court of Appeal rejected the applicant’s appeal, in which the applicant’s counsel had stated that the applicant’s ability to stand trial was not reduced due to his prior heart surgery. The Court of Appeal found that the strong suspicion of the applicant having engaged in drug trafficking, as well as the risk of his absconding, persisted. With reference to the findings in its decision of 29 April 2008, the Court of Appeal further held that the conduct of the proceedings since May 2008 did not change its assessment that his continuing detention on remand was still proportionate. The low frequency with which hearings had been scheduled and the interruption of the trial from 6 to 21 May 2008 and 17 July to 6 August 2008 had not been imputable to the domestic courts.
26.  On 2 November 2008 the applicant lodged a constitutional complaint against the Berlin Court of Appeal’s decision alleging, inter alia, that the domestic authorities’ failure to conduct the proceedings expeditiously despite his continued detention on remand violated his rights under Articles 5 and 6 of the Convention. By a decision of 26 November 2008 (file no. 2 BvR 2241/08) the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without providing reasons.
27.  By decisions of the Berlin Court of Appeal of 9 March 2009 and the Berlin Regional Court of 20 April 2009 the reinforced security conditions accompanying the applicant’s detention on remand were set aside for the most part.
28.  On 20 April 2009 the Berlin Regional Court, following a further request by the applicant to lift the arrest warrant, again ordered that the applicant’s detention on remand be continued. The applicant appealed against the decision.
29.  On 22 May 2009 the Berlin Court of Appeal, referring to the reasoning in its previous decisions, rejected the applicant’s appeal. The Court of Appeal found that the conduct of the proceedings since its last decision of 6 October 2008 had again been determined by continual applications for the taking of evidence filed by the defence as well as requests for the suspension of the proceedings and motions for bias against the court. All such requests had been dealt with by the Regional Court in due course and any resulting delays in the proceedings, like the time lapse between hearings from 13 December 2008 to 4 January 2009 and 5 May 2009 to 1 June 2009, did not fall within the trial court’s sphere of responsibility.
30.  By a decision of 27 July 2009 (file no. 2 BvR 1320/09) the Federal Constitutional Court declined to consider the applicant’s related constitutional complaint of 18 June 2009.
31.  On 16 September 2009 the Berlin Regional Court pronounced its judgment in the applicant’s trial after having held hearings on a total of 101 days, with an average duration of not more than three hours each, in which it had heard at least twenty witnesses and one expert.
32.  By its judgment of 16 September 2009 the Berlin Regional Court convicted the applicant of two counts of drug trafficking as well as falsification of documents and imposed a cumulative prison sentence (Gesamtfreiheitsstrafe) of six years. In the determination of the applicant’s sentence, the Regional Court had regard to the particular strain to which the applicant had been subject as a result of the long duration of the proceedings as well as of his detention on remand. It emphasised that the latter had lasted around three years, calculated from the date of the applicant’s extradition from Portugal until the pronouncement of the judgment and had been particularly burdensome due to, inter alia, the reinforced security conditions imposed on the applicant and his heart operation in 2008.
33.  As regards the offence of falsification of documents, the Regional Court established that on 2 November 2003 the applicant had entered German territory using a forged Greek passport.
34.  Concerning the drugs-related offences the Regional Court observed that, during the period at issue, the applicant had engaged in large-scale drug trafficking in cooperation with G. and U. In the afternoon of 7 February 2004, the applicant, according to a plan previously agreed with U., had taken over 3 kg of a cocaine mixture as well as 100 kg of hashish from G. in Berlin with a view to reselling the drugs for a profit. The Regional Court also found it established that on an unspecified date in the period between 25 February and 10 March 2004 the applicant had acquired between 95 and 100 g of a cocaine mixture from A.K. for the purpose of reselling it to a customer for a profit.
35.  While the applicant confessed to having used a forged passport on the occasion of his entry into Germany on 2 November 2003, he denied any involvement in drug trafficking. The Regional Court based its finding of facts in this regard on the witness statements made by A.K., whom it considered to be the central witness against the applicant and the only direct witness of the facts underlying the actual crimes. A.K. had secretly observed how G. had handed the drugs over to the applicant on 7 February 2004. On the occasion of a meeting between A.K. and the applicant several weeks after the incident, the applicant had confessed to A.K. that G. had imported the drugs on the applicant’s behalf according to a plan previously set up with U.
36.  Within the period from 6 March 2007 to 15 January 2009, A.K. testified on several occasions as a witness at the applicant’s trial. He answered questions from the trial court and the prosecution throughout the proceedings. At the beginning of the proceedings he furthermore offered to consider answering questions formulated by counsel and put to him by the Regional Court, but refused to answer direct questions from the applicant or the defence, relying on his right to remain silent in order not to incriminate himself by virtue of Article 55 of the Code of Criminal Procedure (see paragraph 49 below). Following his last hearing on 15 January 2009, the witness travelled to Lebanon and subsequent attempts by the Regional Court to summon him to appear at trial were to no avail. By a decision of 31 July 2009 the court held that it would be impossible to have the witness examined in the foreseeable future since the latter was prevented from leaving Lebanon pursuant to a decision by a Lebanese religious court, the authenticity of which had been confirmed by the Lebanese Foreign Ministry and the German Embassy in Beirut. Pointing to the court’s obligation to conduct the proceedings expeditiously in view of the applicant’s continuing detention on remand, and having regard to the fact that the witness had repeatedly been heard at trial, the Regional Court was of the opinion that his absence did not justify a further delay in the proceedings.
37.  The court also heard representatives of the police and public prosecution authorities who had been involved in A.K.’s examination at the pre-trial stage as well as the acting judges and public prosecutors in the criminal proceedings conducted in respect of A.K. and in respect of further separately prosecuted co-accused. In addition, at a request by the defence, all available protocols of statements made by A.K. at the various stages of the proceedings were read out at trial with the consent of all parties.
38.  The Regional Court specified in its judgment that A.K’s testimony had only been marginally supplemented and confirmed by the remaining available evidence which had provided information with respect to the motivation underlying the offence, the time when it had been committed and the quality of the drugs at issue. The court emphasised that in view of the decisive nature of A.K.’s statements for the applicant’s conviction and the fact that he had refused to answer any questions from the defence, it had assessed particularly carefully and critically whether the witness had been reliable. This had also been necessary taking into account that A.K. was living in Lebanon, had testified at the applicant’s trial with a view to obtaining a reduction of the expected sentence in his own proceedings on charges of drug trafficking and had repeatedly been found guilty of drug trafficking.
39.  The court nevertheless concluded that A.K. had been a credible witness. His witness statements made at trial had been coherent and consistent with submissions previously made before the investigative authorities at the pre-trial stage. His decision to contribute to the clarification of the facts underlying the charges against the applicant as well as other accused persons involved in organised drug trafficking had been motivated by his wish to cut his link to the drug-dealer scene and start a new life. In the Regional Court’s opinion there was no evidence that he had wrongly incriminated the applicant.
40.  The Regional Court further found that the applicant’s right under Article 6 § 3 (d) of the Convention to examine or have examined witnesses against him had been respected in the instant case. A.K.’s refusal to answer questions from the defence did not require the court to exclude his statements as evidence in the trial nor did such behaviour put the witness’s credibility into question. Even following termination of the criminal proceedings against A.K. by final decision of the Federal Court of Justice dated 10 July 2008, the witness could still rely on his right not to testify, by virtue of Article 55 of the Code of Criminal Procedure, since there remained a risk that he would incriminate himself with respect to offences that were closely linked to the one of which he had been convicted. Several investigations previously conducted against A.K. in this respect had been discontinued by the prosecution authorities and could be resumed in the future. The court emphasised in this connection that it had done everything in its power to enable an examination of A.K. by the defence. Despite A.K.’s refusal to answer questions from the defence or the applicant, in the beginning he had offered to consider answering the applicant’s questions put to him in writing. The applicant’s counsel declined this offer. As a consequence the court had granted the applicant’s counsel’s request to examine A.K., which he accordingly did. Any attempts in this respect had, however, been to no avail. Therefore the court itself had questioned A.K. on subjects that had appeared to be of importance for the defence and he had answered all questions. Subsequently, upon the court’s proposal the applicant had submitted further subjects of interest in a list. On these matters the court then put questions to A.K. in a later hearing. In addition, in the last part of the trial, A.K. had answered a number of questions that had been proposed by the defence and had been put to him by the court with identical wording. At his counsel’s recommendation he had then decided to refrain from participating in any such indirect questioning.
41.  In his appeal on points of law of 15 April 2010 against the Regional Court’s judgment the applicant complained, inter alia, that neither he nor his counsel had had an opportunity to examine A.K., the main witness against him, at any stage of the proceedings. Furthermore, A.K.’s testimony had not been corroborated by further significant evidence as regards the actual commission of the crime by the applicant. The applicant also argued that, after A.K.’s conviction in the criminal proceedings conducted against him had become final on 10 July 2008, the latter could no longer rely on a right to remain silent by virtue of Article 55 of the Code of Criminal Procedure in the applicant’s proceedings. The Regional Court had nevertheless not compelled him to answer questions by the defence at that stage of the proceedings and had consequently not done everything in its power to enable an examination of the witness by the defence, in breach of Article 6 § 3 (d) of the Convention.
42.  By written submissions to the Federal Court of Justice dated 31 August 2010, the Federal Public Prosecutor moved that the applicant’s appeal on points of law be dismissed. He argued that, notwithstanding the fact that the applicant had not had an opportunity to examine A.K. at any stage of the proceedings, these had as a whole been fair.
43.  In his reply to the Federal Prosecutor’s submissions, the applicant also claimed that his trial had been unreasonably long. He argued that during 135 weeks or 31 months of trial, hearings had been held on 101 days, which amounted to an average of 0.75 days per week or 3.25 days per month and had on average lasted less than three hours each.
44.  By a decision of 6 December 2010 the Federal Court of Justice dismissed the applicant’s appeal on points of law as manifestly ill-founded.
45.  By written submissions dated 20 October 2010 to the Federal Court of Justice the applicant complained of a violation of his right to be heard.
46.  On 17 January 2011 the Federal Court of Justice rejected the applicant’s complaint.
47.  On 13 January 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained of a violation of his right to a fair trial because he had not been able to question witness A.K. at any stage of the proceedings and of the length of his detention on remand and the length of the proceedings.
48.  By a decision of 18 January 2012 (file no. 2 BvR 447/11) the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without providing reasons.